Rochester Laborers' Welfare-S.U.B. Fund et al v. Flower City Monitors, Inc. et al

Filing 22

DECISION AND ORDER denying 16 Motion to Vacate the Clerk's entry of a notice of default. Signed by Hon. Michael A. Telesca on 7/18/17. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ROCHESTER LABORERS’ WELFARE-S.U.B.
FUND, by Robert Brown, as Chairman,
and Daniel Hogan, as Secretary;
ROCHESTER LABORERS’ PENSION FUND,
by Robert Brown, as Chairman, and
Daniel Hogan as Secretary;
ROCHESTER LABORERS ANNUITY FUND, by
Robert Brown, as Chairman and
Daniel Hogan, as Secretary;
ROCHESTER LABORERS’ APPRENTICE AND
TRAINING FUND, by Robert Brown, as
Chairman, and Daniel Hogan, as
Secretary; LABORERS’ INTERNATIONAL
UNION OF NORTH AMERICA, LOCAL UNION
NO. 435, by Daniel Kuntz, as
Business Manager,

DECISION AND ORDER
No. 6:15-cv-06446(MAT)

Plaintiffs,
-vsFLOWER CITY MONITORS, INC. and
LENORA L. PAIGE, Individually
and as an Officer of FLOWER CITY
MONITORS, INC.,
Defendants.

INTRODUCTION
This an action arising under the Employee Retirement Income
Security Act of 1974, 29 U.5.C. §§ 1001 et seq. (“ERISA”), and the
Labor-Management Relations Act of 1947, as amended, 29 U.S.C. §
185(a) (“LMRA”). The Rochester Laborers’ Welfare-S.U.B. Fund, the
Rochester

Laborers’

Pension

Fund,

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the

Rochester

Laborers’

Apprentice and Training Fund, the Rochester Laborers’ Annuity Fund
(“the Rochester

Laborers’

Funds”),

through

their fiduciaries,

Robert Brown and Daniel Hogan; and the Laborers’ International of
North America Local Union 435 (“the Union”), through its fiduciary
Daniel

Kuntz

(collectively,

“Plaintiffs”),

seek

monetary

and

injunctive relief against Flower City Monitors, Inc. (“Flower
City”), a New York corporation with a principal place of business
in Rochester, and Lenora Paige (“Paige”), the president of Flower
City (collectively, “Defendants”).
FACTUAL BACKGROUND
The Rochester Laborers’ Funds are multi-employer plans, as
defined in ERISA §3(37), 29 U.S.C. § 1002(37), and are employee
benefit plans, as defined in ERISA § 3(3), 29 U.S.C. §1002(3). The
Rochester Laborers’ Funds are recipient and collection agents for
contributions due to the Rochester Laborers’ Employers Cooperative
Education Trust (“L.E.C.E.T.”). The Union is a labor organization
within the meaning of the LMRA § 301(a), 29 U.S.C. §185(a).
Flower City and the Union are parties to collective bargaining
agreements (“CBAs”) covering work at two projects as follows: (1)
the 2009 through 2014 Commercial Building Agreement between Local
Union No. 435 Laborers International Union of North America and the
Construction Industry Association of Rochester, N.Y., Inc. and
Certain Independent Contractors, dated May 7, 2012, as adopted by
Flower City in connection with the SUNY Brockport Tuttle Hall North

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Project (Dkt #11-1, pp.

58-80 of 82); and (2) the 2009 through

2014 Commercial Building Agreement between Local Union No. 435
Laborers International Union of North America and the Construction
Industry

Association

of

Rochester,

N.Y.,

Inc.

and

Certain

Independent Contractors, dated February 19, 2014, as adopted by
Flower City in connection with the Genesee Valley Park Pool and Ice
Rink Project (Dkt #11-1, pp. 81-82 of 82). During the month of July
2012, and the period from March 2014 through May 2014, Flower City
performed work covered by the CBAs at the SUNY Brockport and
Genesee Valley Park projects that required Flower City to remit
fringe benefit contributions and deductions to Plaintiffs. However,
according to Plaintiffs, Flower City failed to remit the required
contributions and deductions for the hours worked by its employees
at the two covered projects.
Plaintiffs subsequently conducted audits of Flower City’s
remittance reports and discovered a shortfall of over sixteen
thousand dollars in contributions and deductions. In February of
2014, Plaintiffs referred the matter to their counsel to pursue
collection of the debt uncovered by the audit. After these efforts
were unsuccessful, Plaintiffs instituted this action by filing
their Complaint on July 29, 2015.
On October 13, 2015, a Clerk’s Notice of Default was entered
against Defendants for failure to plead or otherwise defend this
action.

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Meanwhile, beginning July of 2015, Plaintiffs engaged in
efforts to obtain the books and records needed to conduct a new
audit and quantify Defendants’ debt. However, the chronology of
correspondence submitted by Plaintiffs indicates that Defendants
were

uncooperative

in

responding

to

Plaintiffs’

requests.

In

addition to Defendants, Plaintiffs also sought records from various
third parties (property owners and general contractors) who may
have had business relationships with Plaintiffs.
On May 4, 2017, Plaintiffs filed a combined Motion to Amend
the

Complaint,

pursuant

to

Federal

Rule

of

Civil

Procdure

(“F.R.C.P.”) Rule 15 and Motion for Default Judgment, pursuant to
F.R.C.P. 54

and

55(b)(2).

On

June

5, 2017,

through

counsel,

Defendants filed a Motion to Vacate the Notice of Default, and
opposed Plaintiffs’ request to amend and for default judgment. For
the reasons discussed herein, Defendants’ Motion to Vacate the
Notice of Default is denied.1
DISCUSSION
I.

General Legal Principles
Under F.R.C.P. 55(a), “[w]hen a party against whom a judgment

for affirmative relief is sought has failed to plead or otherwise
defend . . . , the clerk must enter the party’s default.” FED. R.
CIV. P. 55(a).

While

the

entry

of

default “is

therefore not

1

Plaintiffs’ Motion to Amend and Motion for Default Judgment will be
addressed in a separate Decision and Order.

-4-

discretionary[,]”

Bricklayers

&

Allied

Craftworkers

Local

2,

Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779
F.3d 182, 186 (2d Cir. 2015) (per curiam) (“Moulton Masonry”), the
court subsequently “‘may set aside an entry of default for good
cause.’” Id. (quoting FED. R. CIV. P. 55(c) (emphasis in original)).
The Second Circuit reviews decisions under F.R.C.P. 55(c) for abuse
of discretion. Moulton Masonry, 779 F.3d at 186 (citation omitted).
As F.R.C.P. 55(c) does not define “good cause,” the Second
Circuit

has

established

the

following

criteria

that

must

be

assessed: “(1) the willfulness of default, (2) the existence of any
meritorious defenses, and (3) prejudice to the non-defaulting
party.” Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 455 (2d
Cir. 2013) (citations omitted). The Court reviews the three factors
in turn below.
II.

The “Good Cause” Criteria
A.
In

Wilfulness of the Default
the

context

of

a

default,

the

Second

Circuit

has

interpreted “willfulness” “‘to refer to conduct that is more than
merely negligent or careless,’ but is instead ‘egregious and . . .
not satisfactorily explained.’” Moulton Masonry, 779 F.3d at 186
(quoting SEC v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998); ellipsis
in original; footnote omitted). “Where a defendant ignores a
complaint without action, a default is deemed willful.” Kulwa v.
Obiakor OB/GYN P.C., No. 12-CV-1868 JG MDG, 2013 WL 504383, at *3

-5-

(E.D.N.Y. Feb. 8, 2013) (citing United Bank of Kuwait PLC v.
Enventure

Energy Enhanced

Oil

Recovery

Assocs.—Charco

Redondo

Butane, 755 F. Supp. 1195, 1205 (S.D.N.Y. 1989) (citing Marziliano
v. Heckler, 728 F.2d 151, 156 (2d Cir. 1984)); other citation
omitted).
Defendants argue that willfulness is not present, because
“[t]here

has

been

no

deliberate

strategy

to

delay

these

proceeding.” (Defs’ Mem. (Dkt #16-1) at 7 (citing Affidavit of
Lenora L. Paige (“Paige Aff”) (Dkt # 16-2)). Paige indicates that
she is president of Flower City and, and at the time that the
Complaint was served,2 [Flower City] was in the midst of a busy
construction

season[,]”

and

she

“simply

lost

sight

of

the

Complaint.” (Paige Aff. ¶ 5). Paige does not dispute that she was
the individual personally served with the Summons and Complaint on
August 18, 2015. Defendants were required to file an answer by
September 8, 2015, but failed to do so.
On October 13, 2015, the Clerk of Court entered a default as
to Flower City and Paige. (See Clerk’s Entry of Default (Dkt #7)).
By letter dated October 12, 2015, Plaintiffs’ counsel served

2

Plaintiffs indicate that they served Paige, individually and on
behalf of Flower City Monitors, Inc., with the Complaint on August 18,
2015. (See Affidavit of Jennifer Clark, Esq. (“Clark Aff.”) (Dkt #11-4)
(stating that the “Summons and Complaint were served upon Defendants by
personally delivering two (2) copies of the same to Defendant Lenora L.
Paige, individually and as an officer and a person authorized to accept
service on behalf of Defendant Flower City Monitors, Inc. . . .”), &
Clark Aff. Exhibits (“Exs.”) A & B (Affidavits of Service sworn to on
August 19, 2015).

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Defendants with a copy of Plaintiffs’ Request for Entry of Default
and the Affidavit in Support of Request for Entry of Default. (See
Affidavit of Jennifer Clark, Esq. (Dkt #19-3), ¶ 6 & Ex. B). On
October 13, 2015, Defendants were served with various discovery
demands including notices to take depositions and a request for
production of documents. (See id., ¶ 8 (Dkt #19-3) & Ex. C). On
October 15, 2015, Plaintiffs’ attorney, Jennifer Clark, Esq., spoke
to Paige about the litigation and Defendants’ obligations to
produce their records for audit. (See id., ¶ 9 (Dkt #19-3)). After
Defendants produced some records for review by Plaintiffs’ auditor,
Plaintiffs’

attorney

sent

a

letter

dated

November

24,

2015,

adjourning the depositions pending the audit results. On May 8,
2014, April 3, 2017, and April 11, 2017, Defendants were provided
with copies of the audit. (See id., ¶¶ 11-12 (Dkt #19-3)). In April
of 2017, Plaintiffs informed Defendants that they would proceed
with seeking default judgment absent a proposal by Defendants to
pay the debt. (See id., ¶ 12 & Ex. E (Dkt #19-3)). Defendants do
not dispute these assertions. Defendants did not file anything in
this matter until May 16, 2017, when their current attorney, filed
a Notice of Appearance, which was followed by the filing, on May
17, 2017, of a Motion for an Extension of Time to Respond to the
Motion for Default Judgment. Thus, Defendants waited 1 year, 8
months, and 29 days to respond to Plaintiffs’ request for an entry
of default.

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Plaintiffs argue that the factual circumstances surrounding
Defendants’ default are analogous to those in Moulton Masonry, 779
F.3d at 186-87, where the Second Circuit determined that the
defendants had acted willfully. In that case, “there [was] no
dispute that [the individual defendant] was aware of the legal
action pending against him and his company based on his own
admissions and the fact that the corporate defendant requested,
through counsel, an extension of time to respond.” Id. at 186.
“Despite this knowledge,” the defendants in Moulton Masonry “failed
to file a responsive pleading for over nine months after the
receipt of the summons and complaint, nearly eight months after the
defendants were informed that the plaintiffs had requested an entry
for default, and six months after they were served with discovery
demands.” Id. The defendants’ delays in Moulton Masonry thus were
considerably shorter than Defendants’ delays in responding here.
In Moulton Masonry, the defendants’ “primary justification for
failing to file a responsive pleading, or participate in the
litigation in any way, is that [the individual defendant] believed
his participation in the audit was sufficient to discharge the
defendants’ duties. In his view . . . his failure to file a
responsive pleading was a mere mistake and, therefore, excusable.”
779 F.3d at 186. Similarly, Paige asserts that her failure to
respond was simply an “oversight”, which Defendants argue “was not
so egregious as to rise above mere negligence or carelessness. . .

-8-

.”

(Defs’

Mem.

(Dkt

#16-1)

at

7).

However,

based

on

the

documentation submitted by Plaintiffs, it appears that Defendants
refused to cooperate with Plaintiffs’ attempt to gather records to
conduct the necessary audit.
Nevertheless, even accepting that Defendants’ argument “might
give rise to an inference that their failure to file a responsive
pleading was not in bad faith, ‘a finding of bad faith is [not] a
necessary

predicate

to

concluding

that

a

defendant

acted

“willfully.”’” (quoting Gucci Am., Inc. v. Gold Ctr. Jewelry, 158
F.3d 631, 635 (2d Cir. 1998)). Instead, to “support a finding of
‘willfulness,’” “it is sufficient that the defendant[s] defaulted
deliberately.” Gucci Am., Inc. v. Gold Ctr. Jewelry, 158 F.3d 631,
635 (2d Cir. 1998) (district court erred in requiring bad faith;
willfulness of defendants’ default demonstrated where corporate
defendants,

through

complaints

and,

their

principals,

subsequently,

with

were
the

served

with

plaintiffs’

the
joint

application for damages; principals were both aware that a lawsuit
was pending against them and, specifically, that two plaintiffs
sought damages of $25,000, per trademark violation, against their
respective companies; and the district court specifically found
that principals made deliberate decisions not to respond to the
plaintiffs’ damages application). In light of these precedents, the
Court is compelled to find that Defendants’ conduct in “simply
ignore[ing] the complaint without action[,]” United Bank of Kuwait

-9-

PLC, 755 F. Supp. at 1205 (citations omitted), “indicates just such
a

clear pattern

of

willful

and

deliberate

disregard

for

the

litigation.” Moulton Masonry, 779 F.3d at 187 (citing Guggenheim
Capital,

LLC,

722

F.3d

at

455);

see

also

Belizaire

v.

RAV

Investigative & Sec. Servs., Ltd., 310 F.R.D. 100, 105 (S.D.N.Y.
2015) (finding willfulness where defendant “fail[ed] to offer
evidence of its own diligence in monitoring this case, aside from
delivering the initial Complaint to its counsel” and “[n]otably,
RAV [made] no mention of the communications mailed to it throughout
the course of this litigation, detailed above, which should have
apprised RAV not only of the suit’s continued existence, but of the
fact that a damages hearing following a default judgment was taking
place”).
B.

Existence of a Meritorious Defense

“In order to make a sufficient showing of a meritorious
defense in connection with a motion to vacate a default judgment,”
the defaulting defendants “need not establish [their] defense
conclusively, but [they] must present evidence of facts that, if
proven at trial, would constitute a complete defense.” SEC v.
McNulty, 137 F.3d at 740 (citation and internal quotation marks
omitted).
Defendants assert that they have one or more meritorious
defenses to Plaintiffs’ Complaint. Primarily, Defendants contend
that the results of Plaintiffs’ April 3, 2017, indicating that

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Defendants

owe

$10,925.85

for

the

Genesee

Valley

Restoration

(“GVR”) project, is based upon erroneous information. Paige avers
that she bid the job as a subcontractor to Genesee Building
Restoration, which was under contract with the City of Rochester
for restoration work to the Genesee Valley Park Pool and Ice Rink.
Paige indicates that Flower City’s bid “was based on the premise
that

the

Plaintiff

project[,]”

but,

would

“between

not
the

have
bid

any

and

involvement

the

execution

in

the

of

the

subcontract agreement, the Plaintiff became involved, at which time
[Paige] objected.” Paige asserts that she had a conversation “with
Ace, a representative of the Plaintiff at the time, in which [she]
explained the situation to him, and [they] worked out a resolution
wherein [she]

would

utilize

some

Union labor, put

[her]

own

employees on the job, and pay them separately at the same rate paid
to a Union labor member.” Paige avers that “[i]t was agreed that if
[she] paid [her] own employees separately, no contributions needed
to

be

made

to

the

Union

on

their

behalf.”

Paige

points

to

documentation attached to the April 3, 2017 audit as providing
support for this oral agreement. In essence, Paige asserts that the
written CBA was modified by this oral agreement between herself and
one of Plaintiffs’ representatives for Plaintiffs not to enforce
certain terms of the CBA.
Plaintiffs dispute that there was any such oral agreement.
Nonetheless, even assuming the existence of such an oral agreement,

-11-

it is invalid to modify Defendants’ obligations under the terms of
the written collective bargaining agreement. See Benson v. Brower’s
Moving & Storage, Inc., 907 F.2d 310, 314 (2d Cir. 1990) (“[A]n
employer may not assert that the union orally agreed not to enforce
the terms of the collective bargaining agreement[.]”) (citing
Central States, Se. & Sw. Areas Pension Fund v. Gerber Truck Serv.,
Inc., 870 F.2d 1148, 1154 (7th Cir. 1989) (“Local 50 and Gerber
signed and sent to the plans a participation agreement, separate
from the collective bargaining agreement, in which Gerber promised
to

contribute

on

behalf

of

all

of

its

drivers.

Section

302(c)(5)(B), like § 515, prevents a court from giving force to
oral understandings between union and employer that contradict the
writings.”) (citing Mo-Kan Teamsters Pension Fund v. Creason, 716
F.2d 772, 777 (10th Cir. 1983); Waggoner v. Dallaire, 649 F.2d
1362, 1366 (9th Cir. 1981)). Therefore, this is not a potentially
meritorious defense available to Defendants.
Defendants next assert that the 2009-2014 CBA expired on April
30, 2014 (see Dkt #11-1, p. 61 of 82), and therefore Plaintiffs’
attempt to seek contributions beyond this date, into May of 2014,
is improper. (See Dkt# 11-1, ¶ 14, p. 5 of 82). Plaintiff counters
that this collective bargaining agreement did not expire, and that
Defendants are bound, by their participation in the Employer’s
Association, to any subsequently negotiated bargaining agreements.
See Charles D. Bonanno Linen Serv., Inc. v. N.L.R.B., 454 U.S. 404,

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410–11 (1982) (The NLRB’s “rules [for withdrawal from multiemployer
units], which reflect an increasing emphasis on the stability of
multiemployer units, permit any party to withdraw prior to the date
set for negotiation of a new contract or the date on which
negotiations actually begin, provided that adequate notice is
given.

Once

negotiations

for

a

new

contract

have

commenced,

however, withdrawal is permitted only if there is ‘mutual consent’
or ‘unusual circumstances’ exist.”) (quotation omitted); P & C
Lighting Ctr., 301 NLRB 828, 831–32 (1991) (“The letter of assent
signed by Panter provides that the authorization given to the
Association remains in effect until written notice is given at
least

150

days

prior

to

the

expiration

of

the

then

current

agreement. There has been no evidence that such notification has
been

given.

Accordingly,

Respondent

was

bound

to

the

1981

collective-bargaining agreement between the Association and the
Union, and to all subsequent agreements.”).
Here, on May 7, 2012, and on February 19, 2014, Flower City
executed the 2009-2014 CBA, thereby delegating its bargaining
rights to the Employer’s Association. (See Affidavit of Daniel
Kuntz (“Kuntz Aff.”) (Dkt #11-1), ¶ 6 & Ex. B at 1). There is no
evidence that Flower City terminated or repudiated the 2009-2014
CBA. (See, e.g., Kuntz Aff., Ex. B at 35 (Dkt #11-1, p. 78 of 82)).
Thus, Flower City never terminated the Employer Association’s
authority to engage in collective bargaining on its behalf. As a

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result, Flower City became bound to the subsequent collective
bargaining agreement, which was negotiated on April 29, 2014, and
effective May 1, 2014, through April 30, 2019. The Court finds that
this defense likewise is not meritorious.
Defendants also raise general objections to Plaintiffs’ damage
calculations. “Although in an answer general denials normally are
enough to raise a meritorious defense, the moving party on a motion
to reopen a default must support its general denials with some
underlying facts.” Sony Corp. v. Elm State Elecs., Inc., 800 F.2d
317, 320–21 (2d Cir. 1986). Furthermore, Defendants cannot now be
heard to complain that the amount of damages was incorrectly
calculated when they repeatedly refused to respond to Plaintiffs’
discovery requests. See, e.g., King v. Galluzzo Equip. & Excavating
Inc., 223 F.R.D. 94, 99 (E.D.N.Y. 2004) (finding that employers
seeking to vacate default judgment for delinquent employee fund
contributions could not assert as meritorious defense warranting
vacatur of default judgment that amount of judgment was incorrectly
calculated, when they had consistently refused to respond to
discovery requests and to fund-trustees’ application for default
judgment) (citations omitted). Furthermore, Defendants’ assertion
they are not liable for interest, liquidated damages, attorneys’
fees, auditors’ fees, and costs, is not a potentially meritorious
defense. See Iron Workers Dist. Council of W. N.Y. & Vicinity
Welfare & Pension Funds v. Hudson Steel Fabricators & Erectors,

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Inc., 68 F.3d 1502, 1507 (2d Cir. 1995) (ERISA § 502(g)(2) stating
that

in

action

by

plan

fiduciary

to

recover

delinquent

contributions to multiemployer plan in which judgment in favor of
the

plan

is

awarded,

court

shall

award

plan

(1)

unpaid

contributions, (2) interest on unpaid contributions, (3) liquidated
damages, or (4) attorney fees and costs, does not require that
favorable judgment be awarded on each of the four items of relief
specified therein, but simply directs that, once there is favorable
judgment, plaintiff is entitled to all the measures of relief not
already obtained; judgment will necessarily reflect fewer than all
of the forms of relief available if partial relief has been
obtained by way of paid up contributions”). While Paige, as an
individual defendant, is not liable for liquidated damages, Moulton
Masonry, 779 F.3d at 190, prejudgment interest and attorneys’ fees
“can constitute appropriate equitable or remedial relief” under 29
U.S.C. §§ 1109(a) and 1132(g)(1), respectively. Id. (emphasis in
original).
Defendants further assert that it is improper for the Court to
enter a default judgment on the basis of allegations made “upon
information

and

belief”

in

Plaintiffs’

Complaint.

A

party’s

default, however, constitutes an admission of all well-pleaded
factual allegations in the complaint, except for those relating to
damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Reality Corp.,
973 F.2d 155, 158 (2d Cir.), cert. denied, 506 U.S. 1080 (1993).

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Thus, upon a party’s default, the court is required to accept the
other party’s “factual allegations as true and draw all reasonable
inferences in its favor[.]” Finkel v. Romanowicz, 577 F.3d 79, 84
(2d Cir. 2009) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d
61, 65 (2d Cir. 1981) (noting that, where a party moves for a
default judgment after another party’s default, the moving party is
“entitled

to

offered”));

all

see

reasonable

also

Moulton

inferences
Masonry,

from

779 F.3d

the
at

evidence
188

(“The

allegations in the complaint when accepted as true, as we are
required

to

do

in

deciding

whether

a

default

judgment

is

appropriate, establish the following facts. . . . [which] are
sufficient to render the corporate defendant liable under ERISA.”)
(citing 29 U.S.C. § 1145; Finkel, 577 F.3d at 85). This is not a
meritorious defense.
Finally,

Defendants

point

to

the

fact

that

Flower

City

remitted cash contributions directly to its employees and argue
that this relieves them of their obligations to remit contributions
to Plaintiffs. This is not a meritorious defense. See O’Hare v.
Gen. Marine Transp. Corp., 740 F.2d 160, 170 (2d Cir. 1984)
(rejecting employer’s argument that “since it provided alternate
insurance coverage for its employees during the time in question,
and because the trust therefore did not have to pay for insurance
for the covered General Marine employees during that time, it
should

not

be

held

liable

to

the

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Insurance

Fund

for

unpaid

contributions”; “the fact that appellant’s improper conduct now
requires it in essence to pay twice is simply irrelevant as regards
its obligation to the Fund”) (citing Brogan v. Swanson Painting
Co., 682 F.2d 807, 809 (9th Cir. 1982) (The contractor’s cash
payment of equivalent benefits to non-union employees does not,
however,

in

itself,

excuse

the

contractor’s

obligation

to

contribute to the trust funds.”); other citation omitted).
C.

Prejudice to Plaintiffs

Typically, a party seeking to prevent vacatur of a notice of
default or of a default judgment will show prejudice by asserting,
e.g., “loss of available evidence, increased potential for fraud or
collusion, or substantial reliance upon the judgment . . . .”
Feliciano v. Reliant Tooling Co., 691 F.2d 653, 657 (3d Cir. 1982)
(citations omitted). On the other hand, “delay standing alone does
not establish prejudice.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90,
98 (2d Cir. 1993) (citing Davis v. Musler, 713 F.2d 907, 916 (2d
Cir. 1983)). Plaintiffs have not demonstrated any prejudice that
would result from vacating the clerk’s entry of judgment. The
prejudice factor does not weigh in favor of denying Defendants’
motion.
D.

Summary

On balance, although there is no indication that Plaintiffs
would be prejudiced if this Court vacated the notice of default,
the

first

two

factors

weight

strongly

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in

favor

of

denying

Defendants’

motion

to

vacate.

As

discussed

above,

Defendants

willfully defaulted and have not succeeded in stating a potentially
meritorious

defense.

Accordingly,

the

Court

exercises

its

discretion to deny Defendants’ motion. See, e.g., Farrell v. Cty.
Van

&

Storage,

Inc.,

No.

96-CV-1174,

1996

WL

705276,

at

*3

(E.D.N.Y. Nov. 25, 1996) (court rejected plaintiff’s attempted
showing of prejudice based on delay; however, other two factors,
willfulness and lack of meritorious defense, “tip[ped] strongly in
favor

of

denying

defendant’s

motion”);

see

also

See

Moulton

Masonry, 779 F.3d at 187 (finding district court did not abuse its
discretion; stating it “need not reach the question of whether the
plaintiff would suffer prejudice as [court] [is] ‘persuaded that
the default was willful and . . . unpersuaded that the defaulting
party has a meritorious defense’”) (quoting McNulty, 137 F.3d at
738).
CONCLUSION
For the foregoing reasons, the Court finds that Defendants
have

failed

to

establish

“good

cause”

for

their

default.

Accordingly, Defendants’ Motion to Vacate the Clerk’s Notice of
Default is denied.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

July 18, 2017
Rochester, New York

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